Cindi Family v Minister of Rural Development and Land Reform and Others

The Cindi Family claimed land restitution in respect of Rondavel 403, Standerton district municipality, Mpumalanga. An inspection in loco was conducted on 10 and 11 February 2021 on a number of farms in the Standerton area. The inspection was conducted with the court constituted by Attorney T Maodi as assessor and the Acting Judge President. The parties, their legal representatives and experts attended. During the inspection, each structure or feature was given a location number with GPS coordinates noted. The parties identified and described physical features, with all observations dictated and recorded using a dictaphone while photographs were taken. It was agreed that Mr Havenga (for the landowner defendants) would prepare a draft minute from the audio recording for Mr Whittington (for the plaintiff) to consider. A dispute arose between the parties regarding what should be contained in the minutes of the inspection, particularly concerning headings describing locations by reference to persons or periods, and passages recording statements, contentions, and explanations made by parties during the inspection.

• What should be contained in a minute of an inspection in loco conducted before evidence is led in land claims proceedings?
• Whether headings in a minute of inspection can describe locations by reference to persons or periods where such descriptions are disputed between the parties
• Whether statements, contentions, and explanations made by parties during an inspection in loco should be recorded in the minute
• What is the legal status and evidentiary value of statements made by parties during an inspection in loco before the court?
• Whether statements made during an inspection constitute judicial admissions or can be used in cross-examination during trial

The court ruled that: (1) Unless defendants can point to clear admission by plaintiff, disputed headings must be amended to neutral headings; (2) Unless plaintiff informs defendants within 10 days of errors in transcription, statements in the Havenga draft will be deemed accurate; (3) Remaining disputes after further 10 days will be referred to court with parties identifying relevant audio passages; (4) Parties must cooperate in clearly identifying contentions/explanations from common cause facts, and identifying persons who made statements; (5) Parties to agree on grammatical changes; (6) Parties shall involve the State Attorney in the process before presenting final draft to court for confirmation with photographs and descriptions.

Statements made by parties during an inspection in loco, though not made under oath, constitute 'curial statements' because they are deliberately made in the presence of the presiding judge during court proceedings. While such statements carry no evidentiary weight in favor of the person who uttered them until testified to at trial, they may constitute judicial admissions if formally agreed to by the other party, and can be used in cross-examination during trial to test veracity, reliability, or underlying premises of opinion evidence. Since statements made during inspections can be introduced for various purposes during trial, relevant statements must be recorded to avoid disputes about what was actually said. Headings and descriptions in minutes of inspection must remain neutral where there is dispute between parties, unless there is clear admission by one party. Minutes must clearly distinguish between observations that are common cause from contentions advanced by one party only, and must identify the source of contentions (whether client or expert).

The court commended the parties for the planning and implementation of the inspection in loco, describing it as 'possibly the best planned and implemented inspection' the judge had participated in. The court observed that the benefits of inspections - including elimination of disputed points about physical features and narrowing of issues by allowing parties to reassess their positions - more readily bear fruit if the inspection is held before any evidence is led. The court noted that the nature of statements made at inspections cannot be pigeonholed within a single classification, and that the same statement may serve different purposes and have different consequences depending on the purpose for which its introduction is sought. The court emphasized that the common denominator is that such statements are made before a judge and form part of the court record, thus cannot be totally ignored for all purposes.

This case provides important guidance on the conduct and recording of inspections in loco in South African land claims proceedings. It clarifies the multiple purposes served by inspections conducted before evidence is led, particularly in land restitution matters involving historical occupation. The judgment establishes the legal status of statements made during inspections as 'curial statements' that, while not constituting evidence until confirmed under oath, can constitute judicial admissions or be used in cross-examination. It provides a framework for recording such inspections that balances the need to contextualize observations with the requirement to distinguish between agreed facts and disputed contentions. The judgment emphasizes the importance of accurate recording of what is observed and stated during inspections, and establishes procedural mechanisms for resolving disputes about the content of inspection minutes.